George v. Hesse

• Decision Date: 23 May 1906
• Citation: 93 S.W. 107
• Parties: GEORGE v. HESSE.
• Court: Texas Supreme Court

93 S.W. 107

GEORGE v. HESSE.

Supreme Court of Texas.

May 23, 1906.

Certified Questions from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by William Hesse against T. E. George. From a judgment in favor of plaintiff, defendant brought error to the Court of Civil Appeals (94 S. W. ___), which certifies questions to the Supreme Court.

Gordon Bullitt. A. C. Bullitt, and Newton & Ward, for plaintiff in error. Bertrand & Arnold, for defendant in error.

GAINES, C. J.

This is a certified question from the Court of Civil Appeals for the Fourth Supreme Judicial District. The statement and question are as follows:

"In the above-styled and numbered cause pending on motion for rehearing, in this the Court of Civil Appeals for the Fourth District of Texas a question of law arises, which this court deems advisable to submit to your honorable court for adjudication, and this court has accordingly directed to be certified to your honorable court for decision the following question:

"Explanation: A trade or exchange of property was consummated, by which George conveyed to Hesse an undivided two-thirds of certain land in Dimmit county and two-thirds of some personal property thereon, and Hesse conveyed to George a house and lot in San Antonio. The deed to Hesse was a consideration of $2,000, and the assumption by Hesse of two-thirds of an indebtedness of $2,500 and interest, and certain other minor assumptions. George assumed an incumbrance on the house and lot of about $1,300. What the Dimmit county land or the personal property was valued at in the trade does not appear. The action was brought by Hesse for damages for deceit in this: That George represented to him and caused him to believe, and act in consummating the trade, upon the fact that the Dimmit county land had a gusher of water upon it, which representation was material and proved to be false. The evidence sustained these allegations. There was evidence that this land without a gusher was worth $5.33 an acre, and with a gusher would have been worth $20 an acre. The court charged the jury as follows: `If you find for the plaintiff, then your verdict should be for the difference in value, if any, that you find from the evidence to be, between the reasonable market value of the Dimmit county land on November 25, 1903, without a gusher of water, that is, a strong, flowing well of water on same, and the reasonable market value of said land on said date, with a gusher of water, that is, a strong flowing well of water on same, of the kind that you find from the evidence was represented by George, if you find he made such representation.' And the jury found a verdict in accordance with such measure of damages.

"Question: Did the charge give the correct rule for the measure of damages?

"In view of cases cited in the motion for rehearing on the question we deem it appropriate to refer the court to certain authorities which are against the rule applied by the charge. Merrill v. Taylor, 72 Tex. 293, 10 S. W. 532; Smith v. Bolles, 132 U. S. 125, 10 Sup. Ct. 39, 33 L. Ed. 279; Sigafus v. Porter, 179 U. S. 116, 21 Sup. Ct. 34, 45 L. Ed. 113; Reynolds v. Franklin (Minn.) 46 N. W. 139, 20 Am. St. Rep. 540; High v. Berret (Pa.) 23 Atl. 1004; Crater v. Binninger, 97 Am. Dec. 737; Pruitt v. Jones (Tex. Civ. App.) 36 S. W. 502. In Farmer v. Randel, 28 S. W. 384, decided since the case of Merrill v. Taylor, supra, the Court of Civil Appeals at Ft. Worth held the rule to be in accordance with the charge given by the trial court, with which we are unable to agree."

We are of the opinion that the question should be answered in the negative. There is a conflict of authority upon the point; but it seems to us, that the difference of opinion grows out of a confusion as to the nature of the cause of the action. This is not a case in which the plaintiff sues for the breach of a contract, for the contract has been performed by both parties. But it is a case in which the plaintiff sues to recover damages for a fraudulent representation by which he has been induced to enter into a contract to his loss. Clearly, we think, the extent of his loss is the...